Appeal No.	EAT/0190/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 June 2000

Before
HIS HONOUR JUDGE J ALTMAN
MR D J JENKINS MBE
MRS D M PALMER

MR ANTHONY CAMPBELL	APPELLANT

CANDY DOMESTIC APPLIANCES LTD	RESPONDENT

Transcript of Proceedings

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON. 	

JUDGE ALTMAN:

1.	This is an appeal from the decision of an Employment Tribunal sitting at Liverpool on 24 November 1999.  It comes to us by way of preliminary hearing to determine whether there is a point of law, sufficient to justify this matter being heard in full before the Employment Appeal Tribunal.  

2.	The Appellant was the employee and he made a complaint of unfair dismissal arising out of a constructive dismissal.  The Employment Tribunal found that he was not dismissed. They came to that conclusion because the 3 matters of which he made complaint did not, they found: -
“Either individually or collectively, go to the heart of the contractual relationship between the applicant and the respondent company and Mr Campbell may have been affected by the 3 incidents but they did not destroy the implied term of trust and confidence.  In other words, there was no fundamental breach of his contract, nor indeed did the breach cause the employee to resign.  Mr Campbell resigned for his own reasons.”  

3.	Accordingly the Employment Tribunal made a two-fold finding.  First of all they found that the incidents, about which, it appears, there was no issue as to whether they had happened, were not sufficiently serious to amount to a breach of trust and confidence and secondly they did not accept the Appellant’s evidence that those incidents were the reasons why he left when he did.  

4.	The Tribunal found the factual background as follows. At the time the Appellant was a Production Operator and a Convenor for the Union at the place where he worked.  There was a redundancy process in which he was instrumental and effective on behalf of his members apparently in negotiating a very satisfactory process.  During the course of that process, the respondents arranged with the appellant that, although for those within the redundancy exercise their employment was terminated in about February or March 1999, the Respondents would make an exception in the case of the Appellant.  They made a separate agreement with him to defer the termination of his contract for redundancy until 24 August 1999 and they point out that that was some 7 months later.  

5.	The Appellant in fact handed in his notice on 5 July and left on 9 July because he says that he was dismissed, before the due date for the ending of his employment for redundancy, and that the dismissal was due to the breach of the implied term of trust and confidence because of the 3 incidents of which he made complaint.  The Respondents submitted that at the time the Appellant did not use the grievance procedure and that the 3 incidents were not significant.  They described them as “the usual sort of badinage on the shop floor” and they submitted that the handing in of notice was purely voluntarily. For the Appellant these incidents were serious complaints and the third one was, although they are not his words as I understand it, “the last straw which broke the camel’s back” and which led him to leave. The Appellant was a very experienced Trade Union official having been with the company for some 13 years.  The 3 incidents were found to have occurred as follows: 
1)	First was an altercation between the Appellant and Mr Altan the Factory Director who accused the Appellant of putting nails in the coffin of the company, of trying to destroy it by his interventions and bring it to an end.  That was a particularly hurtful remark so far as the Appellant was concerned, because he had worked for many years with the company, it is a large plant and he was being accused of trying to have it shut down, where he had been the convenor for many years responsible for a large number of people, where he had worked hand in hand with management as a Union Convenor, that he had worked during his holiday times, at nights and had done nothing but the very opposite of what he was being accused.  He says, and the Tribunal found, that he was so upset by the accusations that he went off sick.  When he came back off sick, he was persuaded to stay by Mr Alton, we were told, who did apologise. The Appellant hoped that would be the end of it.  
2)	The next matter occurred, which was that Mr Burgess the Senior Production Engineer was described as screaming and shouting at the Appellant and accusing him of being destructive at every opportunity and guilty of sabotage of machinery.  That again, for the reasons that the first matter hurt the Appellant, hurt him afresh.  The Tribunal found that the incident seemed to fizzle out and nothing came of it.  The Appellant says that he complained and his complaints were ignored and the matter was not resolved.  It was not that it fizzled out and he also says that insofar as the Employment Tribunal found that there was an apology for that incident, they were incorrect about it.  
3)	The third incident involved a Mr Fields who accused the Appellant of trying to ingratiate himself with a married woman, and that suggestion was offensive to the Appellant and no doubt, he says, hurtful to the woman concerned.  It is true that Mr Fields, who made this comment, apologised for it but by then the Appellant had already, on 5 July, handed in his notice because this incident was the culmination of the demonstration of the breach of trust and confidence which meant that he could not remain there any more.  

6.	The incidents to which I have referred were so found to have occurred by the Tribunal.  It is asserted that they erred, they made a mistake, by finding that the second incident fizzled out and nothing came of it, when in fact it was the Respondents who failed to resolve it.  But that was a finding which was available to them on the evidence; the Employment Tribunal was accepting the evidence of the Respondents rather than that of the Appellant on that issue.  That is a judgment that they were entitled to make.  They heard the witnesses, they were in the best position to be able to assess them and to form a judgment about the evidence.  Because an Employment Tribunal prefers one set of evidence to another set of evidence, does not mean that they have made an error of law, such as to justify an appeal.  The same is to be said as to the Employment Tribunal’s finding in relation to the apology.  The Appellant says that there were only two apologies.  The Respondent said that they did apologise. The Employment Tribunal preferred the evidence of the Respondents.  Having found the facts the Employment Tribunal correctly directed themselves to the applicable law and having found that that there was no fundemental breach of contract they said: 
“In each and every case, he had an apology and there is no reason why the contractual relationship should not continue until 24 August when it was agreed that he would leave for redundancy purposes.”
They also rejected the complaint that the Appellant was dismissed for his trade union activities because there was no relationship between these incidents and those activities which, indeed, the Appellant himself regarded as personal.  

7.	A number of incidents do happen from time to time to employees when their employers behave in a way which is less than ideal.  Sometimes the behaviour is not very serious and employment continues.  Sometimes it is so serious that it breaks the terms of trust and confidence, so as to cause an employee to leave.  The Appellant believes that what happened to him falls into the latter category.  The Employment Tribunal made a judgement.  They came to the conclusion that it did not and that the incidents were not sufficiently serious.  We can only ask ourselves whether in reaching that decision, the Employment Tribunal made an error of law on the face of their findings and came to a conclusion which no reasonable Employment Tribunal, properly directing itself could come.  We cannot find within the arguments which are made by the Appellant, however genuine and closely felt by himself in fact, that those arguments give rise to a point of law, such as to entitle the matter to be argued before the Employment Appeal Tribunal.  Accordingly this appeal must be dismissed at this preliminary stage.